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Thursday, October 26, 2017

Virtual Copyright

Posted by
Michael Risch

I have posted to SSRN a draft of a new book chapter that I've written with my former law partner Jack Russo (Computer Law Group LLP in Palo Alto). It is coming out in The Law of Virtual and Augmented Reality (Woody Barfield and Marc Blitz, eds). The abstract of our chapter, called Virtual Copyright, is here:

This book chapter explores the development of virtual reality technology from its rudimentary roots toward its realistic depiction of the world. It then traces the history of copyright protection for computer software user interfaces (a law that only predates virtual reality by a few years), highlighting competing approaches toward protection and infringement. While the focus is on virtual reality, this chapter contains an exhaustive examination of the state of "look and feel" protection for software interfaces.

The chapter then considers how these competing approaches -- each of which is still holds some sway in the courts -- will apply to virtual reality objects, application, worlds, and interfaces. We posit that as VR becomes more realistic, courts will find their way to allow more reuse.

We do not expect to see traditional characters and animation treated any differently in virtual reality. Mickey Mouse is still Mickey Mouse, and Pikachu lives in trading cards, cartoons, augmented reality, and virtual reality. It is whether and how realistic depiction, gesture control, modularization and sharing fit within copyright's limiting doctrines that will create important and difficult questions for future developers, judges, juries, and appellate courts.

We wrote on this topic many, many years ago (before I even went to law school), so it was fun revisiting the topic now that the state of virtual reality and of copyright have advanced somewhat.

But that's one of the interesting things about this topic. Despite the advances, there really weren't that many...you know...advances. In the chapter, we detail some of the earliest virtual reality inventions, including gloves, goggles, and gestures. And we now have much more advanced...gloves, goggles, and gestures. To be sure, the technology is faster, cheaper, more compact, and higher quality, but we are nowhere near the Star Trek holodeck--yes, we discuss CAVEs briefly, but they had those then, too--an example we used to imagine where copyright might go.

And, despite the passage of time, there really haven't been that many advances in copyright treatment of look and feel. As I noted in my article Hidden in Plain Sight, the last really important interface case was decided by an evenly split Supreme Court more than twenty years ago. To be sure, we discuss newer cases like Oracle v. Google, Author's Guild v. Google, all of the important transformative fair use cases, and so forth, but the handwriting for these cases was on the wall some twenty to twenty-five years ago.

And, yet, we think this is an important chapter. All these years later, the courts are still divided about how to handle some of the borderline cases (just look at how difficult the Oracle v. Google API case has been), and courts are still struggling with how to manage modularization and realistic depictions (as seen in disputes about fan fiction, museum photography, and social media). These are all problems that will seep into virtual reality, and we explain the different ways courts have handled disputes and how we think they will treat particularly salient virtual reality problems in the future.